St.2012, c.193: An Act Further Regulating Animal Control is effective October 31, 2012. This new law establishes the Homeless Animal Prevention and Care Fund with a voluntary check-off donation on income tax returns. Prohibits declaring a dog dangerous solely based on the breed of dog. Also regulates health certificates for dogs and cats brought into or sold in Mass, kennel licenses, nuisance and dangerous dogs, euthanasia, animal cruelty, protection for animals in domestic violence restraining orders and more.

"The Hermanson case dealt with the conflict between G.L. c. 231, § 13B, which limits a plaintiff’s ability to demand a specific monetary amount in a complaint, and Rule 54(c), which provides that a default judgment may not exceed the amount requested in the demand for judgment."

"[After much deliberation,] the Standing Advisory Committee recommended to the Court, and the Court adopted, an approach that requires the party seeking a default judgment to provide advance notice to the defendant of the nature and type of damages sought that are not a sum certain. This approach required amendments to three rules: Rules 5(a), 54(c), and 55(b)(2)."

Monday, October 29, 2012

The Mass. Trial Court has announced that courts will close at noon today, Monday, and reopen at noon on Tuesday, due to Hurricane Sandy. Therefore, the law libraries will be closed and no online services will be available during those hours. Stay safe!

Wednesday, October 24, 2012

The SJC Standing Committee on Pro Bono Legal Services is requesting input on proposed changes to SJC Rule 4:02. "The proposed amendment would allow Massachusetts-based in-house counsel who are admitted to practice and in good standing in jurisdictions outside of the Commonwealth, to perform pro bono legal services in Massachusetts."

"Comments should be directed to The Standing Committee on Pro Bono Legal Services, c/o Carol Lev, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108 on or before Friday, November 9, 2012. Comments may also be sent to carol.lev@sjc.state.ma.us."

This summer, the District Court Appellate Division heard a case (Irwin v. Deresh, 2012 Mass. App. Div. 142) in which a dog was attacked and injured by a second dog, and the question of appropriate damages was addressed. The court declined to hold that damages should be limited to the "diminution in value of the dog", or the fair "market value of the dog." Instead, the court held that the plaintiff could recover reasonable veterinary costs for the dog's treatment, in excess of $8,000, saying,

"Without romanticizing the relationship between a domesticated animal and its owner, we find that household pets, and dogs in particular, belong to a unique category of personal property ... Determining damages in the case of injury to a dog involves different considerations than with other types of personal property. A dog should not be placed in the same category as an automobile or appliance, whose market value and replacement cost can be determined with a high degree of accuracy. Limiting damages to the market value of a dog or measuring damages by the diminution in market value would not be a fair and reasonable measure of the owner’s loss....

"Awarding plaintiffs the reasonable amount paid in veterinary costs was well within the trial court’s proper exercise of discretion and wholly consistent with the goal of returning the plaintiffs to the position they were in prior to the wrongful conduct."

"The 69-year-old Mattapoisett lawyer said she plans to work with retired Middlesex County Probate Court Judge Edward Ginsburg, the founder of Volunteer Lawyers Project/Senior Partners for Justice, to offer legal services in Bristol County's three probate courts."

"She said it hasn't been decided if the program will be launched in New Bedford, Fall River or the Taunton probate courts. But Sorrentino said the hope is that after it is up and running, the program will be replicated in the other two probate courts."...

"Sorrentino envisions enlisting the services of a group of lawyers who will go into the probate courts and represent indigent clients for free once or twice a month."...

"She said many clients don't understand their legal rights or don't know what they're doing. "They don't know how to navigate the system," she said, adding she wants to be there to guide them. "

It will be very exciting to see this program develop over time and across the state.

Sunday, October 14, 2012

Back in June we reported on a new Middleborough bylaw which changed the enforcement of existing bylaws, including one that banned profanity. On October 9, the Attorney General upheld the new bylaw, but chose to comment on the older bylaws, which were not up for review. She said:

"The seven underlying by-laws – including the public profanity by-law – are not before us. However, specific portions or potential applications of the public profanity by-law and two of the other seven – approved many decades ago by prior Attorneys General – now violate the First Amendment’s free-speech guarantees. They should be repealed or amended..."

...

"The seven by-laws referenced in Article 24 were previously adopted at Town Meeting and approved by the Attorney General, in certain cases over 80 years ago. There is no statutory authority for the Attorney General to act on these previously approved by-laws after the 90-day time period of G.L. c. 40, § 32 has elapsed. Concord v. Attorney General, 336 Mass. at 26... Nonetheless, because of the law’s development since the adoption of the by-laws, we offer the following strong cautions regarding the use of Article 24 to enforce certain unconstitutional provisions or applications of three of the by-laws. We also urge the Town to consult with Town Counsel regarding a repeal of the unconstitutional provisions in the by-laws, and amendment of the provisions which risk an unconstitutional application."